When investigators must advise you of your rights

If you have ever watched a police drama on television, you have no doubt heard the warning. With its name coming from a famous U.S. Supreme Court opinion, the warning informs individuals of both their right to remain silent and their right to legal counsel.

The U.S. Constitution confers a variety of rights to individuals. The warning, though, advises criminal suspects of protections that appear the Fifth and Sixth Amendments. Specifically, you have the right to not incriminate yourself and to have a lawyer present during police questioning. Officers must only advise you of your rights, though, if two situations are both true.

You are in custody

The advisement only applies during custodial interrogations. Therefore, for investigators to have a legal requirement to advise you of your right to remain silent and to speak with a lawyer, you must be in police custody. Said another way, you must not be free to leave. If officers permit you to stop the interview and go on your way, you are likely not in police custody. The simplest way to determine whether you are in custody, though, is to ask officers.

Police are interrogating you

As you may suspect, not all custodial arrests involve police interrogation. Still, the warning only applies when police interrogate you. This does not have to be tough or adversarial questioning, though. On the contrary, any time police try to elicit information from you, they are likely performing an interrogation. Nonetheless, voluntary statements you make probably do not require officers to inform you of your legal rights. Also, things you say to others usually do not require advisement.

When analyzing whether officers must advise you of your rights, facts matter. Often, a situation that does not require advisement at the outset requires one during police interaction. Therefore, if you have made incriminating statements to investigators, it is likely worthwhile to determine if officers violated the standard.